Initiating a Will Contest

 

A Will contest which seeks to invalidate an entire Will will results in reinstatement of the last validly executed Will, or if none exists intestacy.

 

Procedural Ways to Bring a Will Contest

 

A Will contest which seeks to invalidate an entire Will will results in reinstatement of the last validly executed Will, or if none exists intestacy. In Pennsylvania, a Will contest maybe initiated in two (2) different ways: A will contest is initiated by either by (i) filing a caveat with the Register of Wills or (ii) appealing the probate decision of the Register of Wills to the Orphans’ Court. In the first instance, jurisdiction over the will contest vests in the Register of Wills.  In the case of an appeal, jurisdiction vests with the Orphans’ Court.

 

Filing a Caveat

 

A will contest may be initiated before the Register of Wills even prior to the probate of a will. Prior to the probate of the will, an individual who wishes to contest a will begins the will contest by filing a caveat with the Register of Wills.

Form of the Caveat

 

The object of a caveat is to prevent the grant of letters of administration or the probate of a will without a hearing at which the caveator may present his objections, and the procedure, whether the caveat is filed as to the grant of letters of administration or to the probate of a will, is similar. The form of the caveat is not material. It is a matter of local practice as to what type of caveat the Register of Wills will accept. There are no forms prescribed by the Probate Estates and Fiduciaries Code.

 

As a matter of local practice, a Register of Wills may accept just a letter requesting that a will not be probated and advising the Register of Wills that a hearing is requested.  It is a wise practice to consult the Supreme Court Orphans’ Court Rules and the local rules of court in advance of the preparation of any papers, and adapt the form thereof, as closely as may be appropriate, to the requirements of papers to be submitted to the orphans’ Orphans’ court Court division.

 

Standing to Initiate a Will Contest

 

To have the standing to contest a will, a person must have sufficient interest in the estate so that he or she will be injured by the probate of the will or will benefit if the will is not probated. For example, beneficiaries in a first will, though not heirs at law, would have standing to contest a later will. If a successful will contest would result in the decedent dying without a will, then those persons entitled to inherit under the intestate laws would have standing to contest the will.

Duty of the Register of Wills Upon Filing a Caveat

 

Upon a caveat being filed with the Register of Wills, the Register of Wills must fix a bond that must be filed by the person filing the caveat. Within ten (10) days of filing of the caveat or a petition for probate, whichever is later, the contestant must post any required bond for payment for costs.

 

When a caveat has been filed, the Register has the authority to set a bond of not less than $500 or more than $5,000, as the register considers necessary, conditioned for the payment of any costs which may be decreed against the caveator. The purpose of the bond is to give protection to the proponents of the will in the event that the will contest is not successful.

 

The Register of Wills, in deciding against the contestants and upholding the validity of the will, may award all or a part of the costs against the caveator, including attorney fees.

 

If the costs are not paid by the caveator, any party in interest may bring suit upon the caveator’s bond and recover the costs from the bond. This section of the Probate Code has not been amended for since 1972 and it is recommended to the Register of Wills that the bond be set on the high side rather than on the low side.  If no bond is filed within 10 days after the amount has been fixed, the caveat is deemed abandoned.

 

Proceedings Before the Register of Wills

 

The Register of Wills is a judicial officer. The acts and decisions of the Register of Wills and the admission of a will to probate are all judicial functions of the Register. Before Prior to the actual hearing before the Register of Wills, the parties are allowed to subpoena witnesses and documents to the hearing and the Register of Wills has the power to issue a subpoena to any person in any county of the Commonwealth to appear before the register at a hearing or to produce papers or records before the Register of Wills.

 

The Register of Wills’ power to subpoena persons and their documents is exclusive throughout the Commonwealth of Pennsylvania. The Register of Wills also has the power to issue commissions or rules to take depositions of witnesses in another county or outside of the Commonwealth.

 

Unlike procedures in the Orphans’ Court, there is no right to engage in discovery. Discovery usually takes the form of depositions of witnesses before a hearing.  Discovery in Pennsylvania is controlled by Pennsylvania R.C.P. 4001, et. seq. The Rules say that the discovery rules apply only to a civil action or proceeding in equity “brought in or appealed to any Court which is subject to these rules”. The definition of the “unified judicial system” under the Judicial Code does not include the Register of Wills. Therefore, although the Register of Wills is a judicial officer and makes judicial decisions, discovery is not available to litigants in proceedings before the Register of Wills.

 

Proceedings Before the Register of Wills Pending the Will Contest

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If the will contest is to proceed before the Register of Wills, it may be necessary to appoint someone to administer the estate until the will contest is concluded. The Register of Wills has the power to appoint an administrator pendente lite to collect the assets of the estate, preserve and protect the assets, pay any debts and taxes, and otherwise preserve the estate until the conclusion of the will contest.

 

Discretion of the Register of Wills to Hear a Will Contest

 

Pennsylvania law provides that when a caveat has been filed the Register of Wills may certify the entire record of the proceedings pending before the Register to the Orphans’ Court. The Act also provides that the Orphans’ Court, upon petition of any party in interest, may direct the Register at any stage of the proceedings to certify the entire record to the Orphans’ Court.     Once the record has been certified to the Orphans’ Court, either on the motion of the Register of Wills or on the motion of any interested party, the Orphans’ court then has exclusive jurisdiction to proceed to a determination of the issues in dispute.

If the record is not certified to the Orphans’ Court, then an actual trial is held before the Register of Wills and the Register of Wills, acting as a judicial officer, will actually decide the outcome of the will contest.

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Appeal from Probate

 

The second way in which a will contest may be initiated is to appeal the Register of Wills decree of probate to the Orphans’ Court.  Any party in interest seeking to challenge the probate of a will or who is otherwise aggrieved by a decree of the register, or a fiduciary whose estate or trust is so aggrieved, may appeal to the Orphans’ Court within one year of the decree.

The Orphans’ Court, upon petition of any party interest, may limit the time of appeal to three (3) months instead of one (1) year. 

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